Central Arizona National Lawyers Guild
1826 E Willetta St.
Phoenix, AZ 85006-3047
602 271 9019 [email protected]
Bar No. 006141
Many of the objections to the proposed ethical rule are based in hostility to the LGBT community and the same sex marriage decision. While we might have expected some significant direction from the Supreme Court in the Masterpiece Cakeshop Ltd et al v. Colorado Civil Rights Commission et al case, (No. 16-111, June 4, 2018) that did not occur. Instead the Supreme Court ducked the First Amendment question instead focusing on the failure of the Colorado Civil Rights Commission to give the baker a neutral hearing under the Free Exercise clause.
The Supreme Court was clear however that the laws and the Constitution can and must protect gay persons in the exercise of their civil rights, and that LGBT persons are entitled to equal treatment. “Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applica¬ble public accommodations law.” That is precisely what the proposed ethical rule does.
We do have clear guidance from the Arizona Appeals Court in Brush and Nib Studio, LC, et al., v. City of Phoenix (No. 1 CA-CV 16-0602) June 7, 2018. The court was clear that a business cannot use religious beliefs to justify discrimination. Free speech cannot be used as a shield to protect a business owner’s decision to discriminate based on sexual orientation (¶21, 27), nor can religion be used as a shield to discriminate against certain customers (¶49).
The state does not lose its ability to regulate commercial activity because it has a speech component. (¶34) When the goal is a business operation not a religious activity, the message is not protected speech. (¶35) In the Brush & Nib case as in the opposition to this ethical rule, a parade of hypotheticals, (¶39) some completely outlandish, was trotted out. The court rejected those arguments because a person cannot claim a statute is overbroad because one can imagine some impermissible act. (¶38)
Eliminating discrimination is a compelling state interest (¶36), and anti-discrimination ordinances, here ethical rules for one profession, are not aimed at suppression of speech but elimination of discriminatory conduct. Freedom to express beliefs is not hindered. Rather the rule is aimed at the broader social purpose of eradicating barriers to equal treatment of all citizens in commercial marketplaces (¶50). The court should rely on the reasoning in Brush & Nib v. City of Phoenix and approve the rule petition.